Opinion
No. 60-515.
June 5, 1961.
Appeal from the Circuit Court for Dade County, John J. Kehoe, J.
Smith Mandler, Miami Beach, for appellant.
Ben Cohen and Murray Goodman, Miami Beach, for appellee.
The appellee filed suit for divorce in Dade County, against her husband who resided in Pennsylvania. The husband answered. A final decree was entered granting the wife a divorce and ordering the husband to pay $6,000 to the wife plus $150 per week installments of alimony and $3,000 for her attorney. On this appeal the husband seeks reversal on several grounds. He challenges the order for payment of $6,000 as constituting a lump-sum alimony which he contends should not be allowed along with permanent alimony payable in installments. He contends that the alimony award was excessive, and objects to the allowance of attorney's fee as being unsupported by testimony. Also, he contends that costs and fees allowed to the wife incident to taking his deposition in Pennsylvania were excessive.
The decree included the following provisions:
"That the Defendant, William Ehrlich, be and he is hereby ordered to pay unto the Plaintiff, Bryann Ehrlich, the sum of Six Thousand ($6,000.00) Dollars on or before September 15, 1960, as and for monies due the Plaintiff from the Defendant, and that he is further ordered to pay the weekly sum of One Hundred Fifty ($150.00) Dollars per week each and every week commencing Monday, August 15, 1960, as and for permanent alimony.
"The Defendant, William Ehrlich, be and he is hereby ordered and directed to pay unto the Plaintiff, Bryann Ehrlich, as and for attorney's fees for Ben Cohen. Esquire, the sum of Three Thousand ($3,000.00) Dollars.
"This Final Decree disposes of any previous orders heretofore entered with respect to monies due the Plaintiff from the Defendant, for alimony and attorney's fees."
The rulings of the court which were challenged are shown to have been made in proper exercise of discretion and are supported by the record. But we find it necessary to modify the order for payment of the $6,000, which the chancellor said was "for monies due the plaintiff from the defendant." The amount owing to plaintiff, which has the support of the evidence and record is the unpaid alimony and the costs allowed on the deposition, aggregating $3,150. Temporary attorney fees were absorbed in the final allowance. The excess of $6,000 over that amount has no basis other than as an award of lump-sum alimony, which was not allowable in view of the permanent alimony of $150 per week which was provided for in the decree. See § 65.08, Fla. Stat., F.S.A.; Yandell v. Yandell, Fla. 1949, 39 So.2d 554; Deigaard v. Deigaard, Fla.App. 1959, 114 So.2d 516; Harrison v. Harrison, Fla.App. 1959, 115 So.2d 709.
Paragraph two of the final decree is hereby modified to require payment of $3,150 in place of the sum of $6,000 therein ordered to be paid, and, as so modified, the decree is affirmed.
Modified and affirmed.
HORTON, C.J., and PEARSON and CARROLL, CHAS., JJ., concur.